vacancies that may happen during the recess

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The Origins and Meaning of Vacancies that may happen during the

Recess in the Constitutions Recess Appointments Clause

By

Robert G. Natelson*

CONTENTS

I. INTRODUCTION:THE ISSUES AND THE CASE OF NOEL CANNING

A. The Noel Canning Case

B. Previous Writing on These Issues

II. AVAILABLE PRE-RATIFICATION MATERIALS

III. THE CONCEPT OF THE SESSION

IV. THE MEANING OF THE RECESS

A. References to the period between sessions as the RecessB. Usages Implying that the Recess Meant Only the Inter-Session Recess

1. Legislative Grants of Special Powers During the Recess

2. Other Resolutions Implying That the Recess Referred Only to

Inter-session Breaks

V. VACANCIES AND THE MEANING OF HAPPEN

A. The Use of Vacancy . . . Happen Language in the Founding Era

B. How Founding-Era Documents Illustrate the Meaning of Happen

C. Measures That Necessarily Exclude All But Discrete Events from the

Meaning of Happen

VI. CONCLUSION1

*Robert G. Natelson, the author of The Original Constitution: What It

Actually Said and Meant, is Senior Fellow in Constitutional Jurisprudence at both

the Independence Institute in Denver, Colorado and the Montana Policy Institute in

Bozeman, Montana. He was a law professor for 25 years, serving at three different

universities. His biography and works are listed athttp://constitution.i2i.org/about.

Abstract

There has been longstanding uncertainty about the

meaning of the Recess and Vacancies that may happen in

the Constitutions Recess Appointments Clause. This Article

finds that both the Recess and close variants of Vacancies

that may happen were standard terms in Founding-Era

legislative practice, and appear copiously in legislative

records. Those records inform us that the Recess means

only the inter-session recess and that a vacancy happens

only when it first arises.
http://constitution.i2i.org/about.http://constitution.i2i.org/about.http://constitution.i2i.org/about.http://constitution.i2i.org/about.


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1Bibliographical Note: This footnote collects secondary sources cited more

than once. Legislative and other governmental publications are listed first, followed

by other books and articles, including dictionaries. Dictionaries of the time

generally were unpaginated.

Legislative and other Governmental Publications

Congress: JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789 (34 vols.)

(U.S. Gov. Printing Off., 1904-1937) [hereinafter J.CONT.CONG.]

Connecticut: THE PUBLIC RECORDS OF THE STATE OF CONNECTICUT (vols. 1-5)

(Charles Hoadley & Leonard Woods Labaree, ed.s, 1904-1943) [hereinafter CONN.

RECORDS]; ACTS AND LAWS OF THE STATE OF CONNECTICUT IN AMERICA (Elisha

Babcock, 1786) [hereinafter CONN.ACTS]

Delaware: MINUTES OF THE COUNCIL OF THE DELAWARE STATE, FROM 1776 TO

1792 (Del. Gen. Assem., 1886) [hereinafter DELAWARE COUNCIL MINUTES];LAWS OF

THE STATE OF DELAWARE FROM THE FOURTEENTH DAY OF OCTOBER,ONE THOUSANDSEVEN HUNDRED, TO THE EIGHTEENTH DAY OF AUGUST, ONE THOUSAND SEVEN

HUNDRED AND NINETY-SEVEN (1797) (2 vols.) [hereinafter DELAWARE LAWS]

Georgia: THE REVOLUTIONARYRECORDS OF THE STATE OF GEORGIA (Allen D.

Candler, ed., 1908) [hereinafter GA.RECORDS]

Massachusetts: THE ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF THE

PROVINCE OF MASSACHUSETTS BAY(mult. vols. & yrs., identified by volume number)

[hereinafter MASS. COLONIAL RESOLVES]; ACTS AND RESOLVES OF THE

COMMONWEALTH OF MASSACHUSETTS (mult. vols. & yrs., identified by year)

[hereinafter MASS.RESOLVES]

Maryland: VOTES AND PROCEEDINGS OF THE LOWER HOUSE OF ASSEMBLY OF

THE PROVINCE OF MARYLAND, JUNE SESSION, 1773 (1773) [hereinafter MD. 1773

PROCEEDINGS]

New Hampshire: DOCUMENTS AND RECORDS RELATING TO THE STATE OF NEW-

HAMPSHIRE DURING THE PERIOD OF THEAMERICAN REVOLUTION FROM 1776 TO 1783&

EARLY STATE PAPERS OF NEW HAMPSHIRE (in consecutive vols. 8, 20 & 21) (1874,

1891 & 1892) [hereafter collectively N.H. RECORDS]; THE PERPETUAL LAWS OF THE

STATE OF NEW-HAMPSHIRE, FROM THE SESSION OF THE GENERAL-COURT JULY1776 TO

THE SESSION IN DECEMBER 1788, CONTINUED TO THE PRESENT YEAR 1789 (John

Melcher, 1789) [hereinafter N.H.LAWS]

New York: JOURNAL OF THE GENERAL ASSEMBLY OF NEW-YORK (colonial

legislature) (mult. yrs. & vols.) [hereinafter N.Y.J.GEN.ASSEM.]; JOURNAL OF THE

ASSEMBLY OF THE STATE OF NEW-YORK (mult. years & vols.) [hereinafter N.Y. J.

ASSEM.]

North Carolina: THE STATE RECORDS OF NORTH CAROLINA (mult. vols.)

(Walter Clark, ed., 1895) [hereinafter N.C.RECORDS]


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Pennsylvania: 1 JOURNALS OF THE HOUSE OF REPRESENTATIVES OF THE

COMMONWEALTH OF PENNSYLVANIA (John Dunlap, 1782) [hereinafter PA. J.];

MINUTES OF THE PENNSYLVANIA GENERALASSEMBLY 1784-1788 (minutes placed in

one volume but paginated by session) [hereinafter PA. GEN.ASSEM.]; MINUTES OF

THE FIRST SESSION OF THE NINTH GENERALASSEMBLY OF THE COMMONWEALTH OFPENNSYLVANIA (1784-85) [hereinafter 1784-85 PA. MINUTES]; MINUTES OF THE

THIRTEENTH GENERAL ASSEMBLY OF THE COMMONWEALTH OF PENNSYLVANIA, IN

THEIR SECOND SESSION (1789) [hereinafter 1789 PA.MINUTES]

Rhode Island: RECORDS OF THE COLONY OF RHODE ISLAND AND PROVIDENCE

PLANTATIONS IN NEW ENGLAND, vols. 7-10(John Russell Bartlett ed., Providence, A.

Crawford Greene (1862-1865) [hereinafter R.I.RECORDS]

South Carolina: THE PUBLIC LAWS OF THE STATE OF SOUTH CAROLINA (John

Faucheraud Grimke, ed. 1790) [hereinafter S.C.PUBLIC LAWS]

Virginia: LEGISLATIVE

JOURNALS OF THE

COUNCIL OF THE

COLONY OF

VIRGINIA

(3 vols., H. R. McIlwaine, ed., 1918) [hereinafter VA.COL.COUNCIL J.]; JOURNAL OF

THE HOUSE OF DELEGATES OF THE COMMONWEALTH OFVIRGINIA(1777-81) (Thomas

W. White, 1827) [hereinafter VA. J. DELEGATES]; JOURNAL OF THE SENATE OF THE

COMMONWEALTH OFVIRGINIA(1785-90) (Thomas W. White, 1827) [hereinafter VA.J.

SENATE]

Other Books and Articles

FRANCISALLEN,ACOMPLETE ENGLISH DICTIONARY(1765) [hereinafter ALLEN]

JOHNASH,THE NEW AND COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE

(1775) [hereinafter ASH]

NATHAN BAILEY,AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY(25th ed.

1783) [hereinafter BAILEY]

FREDERICK BARLOW, THE COMPLETE ENGLISH DICTIONARY (1772-73)

[hereinafter BARLOW]

WILLIAM BLACKSTONE,COMMENTARIES ON THE LAWS OF ENGLAND (1st ed. 1765)

[hereinafter BLACKSTONES COMMENTARIES]

EPHRAIM CHAMBERS, CYCLOPAEDIA, OR AN UNIVERSAL DICTIONARY OF ARTS

AND SCIENCES (1778) [hereinafter CHAMBERS]

EDWARD CROCKER,ANEW ENGLISH DICTIONARY(1713) [hereinafter CROCKER]

ALEXANDER DONALDSON, AN UNIVERSAL DICTIONARY OF THE ENGLISH

LANGUAGE (1763) [hereinafter DONALDSON]

THOMAS DYCHE & WILLIAM PARDON,A NEW GENERAL ENGLISH DICTIONARY

(1777) [hereinafter DYCHE &PARDON]

Jack P. Greene, The Role of the Lower Houses of Assembly in Eighteenth-

Century Politics, 27 J.SOUTHERN HISTORY451 (1961) [hereinafter Greene]


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I. INTRODUCTION:THE ISSUES AND THE CASE OF NOEL CANNING

A. The Noel Canning Case

The Constitutions Recess Appointments Clause provides that The President

shall have Power to fill up all Vacancies that may happen during the Recess of theSenate, by granting Commissions which shall expire at the End of their next

Session.2 In absence of legislation authorizing the President unilaterally to appoint

inferior officers,3 normally the President must obtain the consent of the Senate for

Edward A. Hartnett, Recess Appointments of Article III Judges: Three

Constitutional Questions, 26 CARDOZO L.REV. 377 (2005) [hereinafter Hartnett]

JOHN HATSELL, PRECEDENTS OF PROCEEDINGS IN THE HOUSE OF COMMONS

(1781) [hereinafter HATSELL]

SAMUEL JOHNSON,A DICTIONARY OF THE ENGLISH LANGUAGE (8th ed. 1786)

[hereinafter JOHNSON]

WILLIAM KENDRICK,A NEW DICTIONARY OF THE ENGLISH LANGUAGE (1773)

[hereinafter KENDRICK]

Joan de Lourdes Leonard, The Organization and Procedure of the

Pennsylvania Assembly 1682-1776, Part I, 72 THE PA. MAGAZINE OF HISTORY AND

BIOGRAPHY215 (1948) [hereinafter Leonard]

Robert G. Natelson, Founding-Era Conventions and the Meaning of the

Constitutions Convention for Proposing Amendments, 65 FLA.L.REV. ___ (2013)

(forthcoming) [hereinafter Natelson, Conventions]

S. M. Pargellis, The Procedure of the Virginia House of Burgesses, Part I, 7

WILLIAM &MARYQ. 73 (1927) [hereinafterPargellis I]

S.M. Pargellis, The Procedure of the Virginia House of Burgesses, Part II, 7

WILLIAM &MARYQ.143 (1927) [hereinafterPargellis II]

WILLIAM PERRY,ROYAL STANDARD ENGLISH DICTIONARY(1st American edition,

1778) [hereinafter PERRY]

Michael B. Rappaport, The Original Meaning of the Recess Appointments

Clause, 52UCLAL.REV. 1487 (2005) [hereinafter Rappaport]

THOMAS SHERIDAN,A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE

(1789) [hereinafter SHERIDAN]

C.A. WESLAGER, THE STAMP ACT CONGRESS WITH AN EXACT COPY OF THE

COMPLETE JOURNAL (Univ. Del. Press 1976) [hereinafter WESLAGER]

2U.S.CONST. art. II, 2, cl. 3.

3U.S. CONST. art. II, 2, cl. 2 (the Congress may by Law vest the


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his appointments. However the Recess Appointments Clause grants the President a

limited, unilateral power to fill vacancies without senatorial consent.

The Recess Appointments Clause has been the source of some controversial

questions of interpretation.4

The two explored in this Article are (1) whether theRecess encompasses only inter-session recesses or intra-session breaks as well, and

(2) whether to happen during the Recess means the vacancy must arise then, or

whether a vacancy could happen during a recess if it arises while the Senate is in

session but continues beyond the session and into the recess.

Both of these questions were at issue in the recent decision by the U.S. Court

of Appeals for the District of Columbia Circuit in Noel Canning v. National Labor

Relations Board.5

In that case, the court reviewed an order by the National LaborRelations Board (NLRB) finding that Noel Canning (an employer and a division of a

larger corporate entity) had violated federal labor law.

Noel Canning contended that the order was illegally issued because three of

the five individuals acting for the NLRB were not, constitutionally, board members.

Noel Canning pointed out that the Senate had approved none of them, and that

they claimed their authority as recess appointments. It was these appointments

that Noel Canning challenged.

A majority of the NLRB members in question had been appointed by the

President to fill existing vacancies. The vacancies, however, had arisen when the

Senate was in session and continued into a period in which the Senate, while not

actually conducting business, was in pro forma session.6 Noel Canning argued that

Appointment of such inferior Officers, as they think proper, in the President alone,

in the Courts of Law, or in the Heads of Departments).4

A third issue, whether the Presidents recess appointment authority includesfederal judges, is outside the scope of this paper. Cf. Hartnett, supra note 1

(providing a discussion of all three issues). Another issue is whether a newly created

position qualifies as a vacancy.

5705 F.3d 490 (D.C. Cir. 2013).

6See Alex N. Kron, The Constitutional Validity of Pro Forma Recess

Appointments: A Bright-Line Test Using a Substance-Over-Form Approach, 98 IOWA


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the appointments were invalid both because the Recess means only the inter-

session recess and because for a vacancy to happen it must commence during the

recess.

The D.C. Circuit agreed with Noel Canning on both questions. It heldthat the Recess referred only to the Senates formal inter-session recess and not to

shorter adjournments.7 Shortly after the Noel Canningdecision, the U.S. Court of

Appeals for the Third Circuit decided National Labor Relations Board v. New Vista

Nursing and Rehabilitation,8 which reached the same conclusion. The Noel Canning

court also held that for a vacancy to happen during the Recess the vacancy must

arise during the Recess.9 It was not sufficient for the vacancy to begin while the

Senate was in session and continue into the recess. The New Vista court did notreach this question.

B. Previous Writing on These Issues

There has long been a split in opinion on the two questions addressed in Noel

Canning. The weight of judicial opinion has been that the Recess may include

intra-session breaks and that a vacancy may happen by continuing into the

recess.10 A long succession of opinions from U.S. Attorneys General has taken the

L.REV. 397, 405-05 (2012) (discussing pro forma sessions). For a discussion of the

political background of the case, see Jeff Bergner, Advise and Dissent: The Recess

Appointment Power: A Slow-Motion Train Wreck, 18 THE WEEKLY STANDARD 30

(Apr. 22, 2013).

7Noel Canning, supra, 705 F.3d at 499-507.

8 ___ F.3d ___, 2013 WL 2099742 (3d Cir. 2013).

9Noel Canning, supra, 705 F.3d at 507-14.

10Evans v. Stephens, 387 F.3d 1220, (11th Cir. 2004), cert. denied, 544 U.S.942 (2005) (holding that the Recess includes intra-session breaks and that

happen includes vacancies arising during a session); United States v. Woodley,

751 F.2d 1008, 1013 (9th Cir. 1985) (adopting the same view of happen); United

States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962) (same).But see National Labor

Relations Board v. New Vista Nursing and Rehabilitation, ___ F.3d ___, 2013 WL

2099742 (3d Cir. 2013) (holding that the Recess means only inter-session breaks).


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same positions that most courts have11after, it must be said, initial opinions to

the contrary.12 Among commentators, some have supported the opinions dominant

among courts and Attorneys General,13 but most have supported the positions

enunciated in Noel Canning.14

The leading article on the subject, authored byProfessor Michael Rappaport, concluded that the Recess includes only inter-

session breaks and the vacancy must arise during one of those breaks.15 In its

opinion, the Noel Canningcourt relied heavily on this article.16

However, all of this writing suffers from at least one weakness: the failure to

marshal a significant amount of evidence arising prior to the Constitutions

1133 U.S. Op. Atty. Gen. 20 (1921) (opining that the Recess may include

relatively short intra-session breaks); 16 U.S. Op. Off. Legal Counsel 15 (1992) &United States v. Allocco, 305 F.2d 704, 713 (2d Cir. 1962) (collecting previous

attorney general opinions on the issue).

See also 1 U.S. Op. Atty. Gen. 631 (1823) (stating that happen may mean

happen to exist). T.J. HALSTEAD, RECESS APPOINTMENTS:A LEGAL OVERVIEW 6

(Congressional Research Service, Order Code RL33009, 2005) (collecting opinions

on that issue).

12Edmund Randolph, Opinion on Recess Appointments (July 7, 1792),

http://memory.loc.gov/cgi-

bin/ampage?collId=mtj1&fileName=mtj1page016.db&recNum=846 (opining that

happen refers to the time a recess commences); 23 U.S. Op. Atty. Gen. 599 (1901)(opining that the Recess means only intersession breaks).

13E.g.Harnett, supra note 1 (concluding that happen can include continuing

vacancies and that the Recess can include most intra-session breaks).

14Michael A. Carrier, When Is the Senate in Recess for Purposes of the Recess

Appointments Clause? 92 MICH. L. REV. 2204 (1994) (arguing that the Recess

refers only to inter-session breaks); Stuart J. Chanen, Constitutional Restrictions on

the President's Power to Make Recess Appointments, 79 NW.U.L.REV. 191 (1984)

(arguing that the vacancy must arise during a recess); 3 JOSEPH STORY,

COMMENTARIES ON THE CONSTITUTION 1553 (1833), reprinted in 4 THE FOUNDERS'

CONSTITUTION 122 (Philip B. Kurland & Ralph Lerner eds., 1987), also available at

http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s58.html (arguing that

a vacancy must arise during the Recess to happen then).

15Rappaport, supra note 1, at 1501-47 (happen) & 1550-61 (the Recess).

16See Noel Canning, supra, 705 F.3d at 503, 508, 510 & 513. See also New

Vista, supra, ___ F.3d ___ (citing Professor Rappaports article).
http://memory.loc.gov/cgi-bin/ampage?collId=mtj1&fileName=mtj1page016.db&recNum=846http://memory.loc.gov/cgi-bin/ampage?collId=mtj1&fileName=mtj1page016.db&recNum=846http://memory.loc.gov/cgi-bin/ampage?collId=mtj1&fileName=mtj1page016.db&recNum=846http://memory.loc.gov/cgi-bin/ampage?collId=mtj1&fileName=mtj1page016.db&recNum=846http://memory.loc.gov/cgi-bin/ampage?collId=mtj1&fileName=mtj1page016.db&recNum=846


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ratification. One reason for this is a paucity of discussion on the Recess

Appointments Clause in familiar sources such as The Federalist.17 Instead of

relying on Founding-Era sources, therefore, writers have deduced their answers

almost exclusively18

from textual analysis and from statements and practicesarising yearsoften decadesafter the Constitution was debated and ratified.

Illustrative of this practice is the opinion in Noel Canning, which relied only

one two pre-ratification sources: a snippet from Federalist 67 and a provision of the

1776 North Carolina constitutionboth of dubious relevance.19 The Attorney

17See, e.g., Wilkinson v. Legal Services Corp., 865 F.Supp. 891, 897 (D. D.C.

1994) (stating, It is difficult to ascertain the Framers true intention in drafting the

Recess Appointments Clause. There was little discussion and no debate on this

provision at the Constitutional Convention. . . The only references to this Clause are

Alexander Hamilton's comments [in FEDERALIST NO.67] that it should be used for

temporary appointments when it might be necessary for the public service to fill

[a vacancy] without delay and that it was intended as a supplement to the

Appointments Clause.).

18The principal exception is Professor Rappaport, who does discuss pre-

ratification sources to a greater extent than most writers. See, e.g., Rappaport,

supra note 1, at 1550-52 (discussing British parliamentary practice and the 1780

Massachusetts constitution). Even he, however, relies mostly on textual analysis

and post-ratification sources. The dissent in Evans, supra, 387 F.3d 1220, 1230(Barkett, J. dissenting) undertakes an incomplete survey of Founding Era

dictionaries, as Professor Rappaport notes. Rappaport, supra note 1, at 1503n.

19The North Carolina constitutional provision was N.C. CONST. (1776), art.

xx, discussed by the Noel Canning court at 705 F.3d at 501. This provision is

examined, and its relevance questioned, infra note ___ and accompanying text.

Regarding Federalist No. 67, the court wrote:

When the Federalist Papers spoke of recess appointments, they

referred to those commissions as expiring at the end of the ensuing

session. . . . . For there to be an ensuing session, it seems likely tothe point of near certainty that recess appointments were being made

at a time when the Senate was not in sessionthat is, when it was in

the Recess.

Noel Canning, supra, at 705 F.3d at 500-01.

However, this seems to squeeze too much from a passage that does not

address either the Recess or happen. The passage was part of Alexander


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General opinions have cited even less, resting mostly on speculation, purported

prudential considerations, and prior A-G opinions.20

The disadvantages of omitting pre-ratification material should be obvious.

Statements and practices arising after the ratification could not have been part ofthe original understanding.21 When post-ratification sources do shed light back into

the tunnel of time, that light is usually weak and uncertain.22 Even statements by

people who participated in the constitutional debates, such as Edmund Randolph,

Hamiltons treatment of another topic entirely: Anti-Federalist claims that the

Recess Appointments Clause enabled the President to appoint Senators. In any

event, it is not likely to the point of near certainty that because an appointment

expired at the end of a session it must be made only between sessions. The Framerscertainly could have provided for vacancies to be filled during intra-session recesses

with expiration at the end of the following session. As this Article makes clear,

however, that would have required different wording. Cf. infra notes ____ and

accompanying text.

On the other hand, Hamiltons stated reason for the provisionit would

have been improper to oblige [the Senate] to be continually in session for the

appointment of officers and as vacancies might happen in their recess, THE

FEDERALIST 350 (George W. Carey & James McClellan ed. 2001)does support the

view of consequentialists who might argue that changed conditions justify

constructions that disfavor the Presidents efforts to avoid senatorial confirmation.

20See sources cited supra note 11.

21Founding-Era legal practice considered the understanding of the makers

(meaning, in the Constitutions case, the ratifiers) to determine a documents legal

force. If that understanding was not coherent or determinable, the original public

meaning controlled. See generally Robert G. Natelson, The Founders Hermeneutic:

The Real Original Understanding of Original Intent, 68 OHIO ST.L.J. 1239 (2007).

22I am reminded of the niggardly light by which Aeneas attempted to make

his way to the Underworld:

Ibant obscuri sola sub nocte per umbram

perque domos Ditis uacuas et inania regna:

quale per incertam lunam sub luce maligna

est iter in siluis, ubi caelum condidit umbra

Iuppiter, et rebus nox abstulit atra colorem.

AENEAD, bk. vi, lines 268-272.


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Alexander Hamilton, and Christopher Gore23 are of limited value if issued after the

Constitution was already law. Memories fade and incentives change. For such

reasons, it is my own usual practice to limit evidence of the legal force of the

unamended Constitution to sources arising before the thirteenth state, RhodeIsland, ratified the document on May 29, 1790. 24

II. AVAILABLE PRE-RATIFICATION MATERIALS

Fortunately, there are plentiful pre-ratification materials probative of

original understanding and original meaning. The Framers of the Constitution did

not invent the phrases the Recess and Vacancies that may happen. Both the first

phrase and close variants of the second were stock terms from legislative and othergovernmental practice. Contemporaneous governmental records are powdered with

them. Those records also disclose the meanings of both phrases to a high degree of

certainty. Anyone with experience with contemporaneous legislatures would have

known what they meant. The leading Founders, of course, certainly fit that

category.25

The legislature whose proceedings served as the source for legislatures in

America was the British Parliament, particularly the House of Commons.26

23Noel Canning, supra, 705 F.3d at 508-09 (citing post-ratification statements

by Randolph, Hamilton, and Goreall leading ratifiers).

24ROBERT G. NATELSON, THE ORIGINAL CONSTITUTION 40 (2d ed., 2011)

(discussing the need to limit reliance on post-ratification evidence). Professor

Michael Ramsey points out that a central problem with post-ratification evidence is

that, post-ratification, people have personal and political reasons to support

particular interpretations that have nothing to do with whether the interpretation

is a good reading of the text. See Michael Ramsey, Michael Stern on James Monroe

and the Recess Appointments Litigation, ORIGINALISM BLOG, athttp://originalismblog.typepad.com/the-originalism-blog/2012/12/michael-stern-on-

the-recess-appointments-litigationmichael-ramsey.html.

25See generally CLINTON ROSSITER, 1776: THE GRAND CONVENTION (1966)

(describing the Framers backgrounds).

26PEVERILL SQUIRE, THE EVOLUTION OFAMERICAN LEGISLATURES: COLONIES,

TERRITORIES, AND STATES,1619-200946 (2012) (stating, The rules and procedures


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1781) and the Confederation Congress (March 2, 1781 to March 2, 1789), nearly all

of whose members came from the legislatures of individual colonies and states.30

Similar procedures governed the many inter-colonial and interstate conventions

held during the Founding Era.31

The records of these assemblies largely survive. As elucidated below, those

records provide clear answers to the questions: (1) Does the Recess include intra-

session breaks? and (2) does a vacancy arising during a session but continuing into

the Recess thereby happen during the Recess?

As explained below, the answer to both questions is no. Despite the defects

in its methodology, the Noel Canningcourt was correct.

III. THE CONCEPT OF THE SESSION

Key to grasping the meaning of the phrase the Recess is understanding how

the founding generation understood the concept of a legislative session. This term

was derived from the Latin sedere (to sit).32 The word sitting (or, more rarely,

setting) served as a synonym.33

30Only the delegates from Rhode Island were elected directly for a time. Infra

note ___.

The Confederation Congress sometimes is conflated with the Continental

Congress, as is done in the title of its proceedings (Journals of the Continental

Congress). In this Article, however, when Congress is acting under the Articles of

Confederation, it is designed as the Confederation Congress.

31Natelson, Conventions, supra note 1 (summarizing over a dozen eighteenth

century inter-colonial and interstate conventions).

32OXFORD ENGLISH DICTIONARY, available at

http://www.oed.com.weblib.lib.umt.edu:8080/view/Entry/176769?rskey=hSiREp&res

ult=1#eid (stating etymology of session as deriving ultimately from the Latin verbsedere, to sit).

33See, e.g., 2 CONN. RECORDS, supra note 1, at 396 (stating that such

complaints are to be made to the General Assembly when sitting, and in their recess

the Governor and his said Council); 21 MASS.COLONIAL RESOLVES, supra note 1, at

488-89 (reproducing omnibus resolution granting power during the recess to the

executive until the next setting and until the next sitting of the legislature).


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On the characteristics of a legislative session, the sources evince a high level

of agreement.34 Under British practice, a session of Parliament was the season, or

space, from its meeting to its prorogation, or dissolution.35 Parliament met as the

result of a call from the Crown.36

The session became official once Parliament hadundertaken some formal act.37

A session continued until ended by prorogation or dissolution. Prorogation

was the name of the procedure whereby the king terminated the session by writ.38

William Blackstone wrote:

A PROROGATION is the continuance of the parliament from one

session to another, as an adjournment is a continuation of the session

from day to day. This is done by the royal authority, expressed eitherby the lord chancellor in his majestys presence, or by commission from

the crown, or frequently by proclamation. Both houses are necessarily

prorogued at the same time; it not being a prorogation of the house of

lords, or commons, but of the parliament. The session is never

understood to be at an end, until a prorogation: though, unless some

act be passed or some judgment given in parliament, it is in truth no

34For the information provided in the ensuing paragraphs of the text, see also

8 ENCYCLOPAEDIABRITANNICA5876-77 (2d ed., 1778).

352 EPHRAIM CHAMBERS,CYCLOPAEDIA(1771-72) (entry for SessionSession

of parliament) (In this note, I have cited to the 1771-72 edition rather than the

1778 edition, supra note 1, cited otherwise in this Article, because the 1778 version

is missing the relevant pages in the Gage-Centage database, Eighteenth Century

Collections Online.)

36In emergencies, the call could be issued on as few as fourteen days notice.

HATSELL, supra note 1, at 219 (citing 2 Geo iii, c. 20, 117, which provided that if

Parliament were separated by such adjournment or prorogation as will not expire

within fourteen days, it shall be lawful for his Majesty to issue a proclamation for

their meeting, upon such day as he shall appoint, giving fourteen days notice.).

371 BLACKSTONES COMMENTARIES *180.

38HATSELL, supra note 1, at 207 (referring to prorogation as adjournment by

writ). On Hatsells Precedents, see Pargellis I, supra note 1, at 73, n.1

(recommending the work for an accurate view of Parliamentary proceedings).


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session at all. 39

After a writ of prorogation, if the parliament was not subsequently dissolved or if its

term of office had not ended, then the same lawmakers would convene again on the

date specified in the writ of prorogation. Thus, there could be multiple sessionsduring a particular legislative term of office. In emergencies, the king might call the

members together at a time earlier than that specified in the writ.40 Reconvening

after prorogation represented the beginning of a new session rather than a

continuation of the old.41

Dissolution was the civil death of the parliament.42 A dissolution could be

effected by (1) the decision of the king, (2) the death of the king, or (3) the expiration

of the parliaments term of office. The king could dissolve a parliament afterproroguing it.43 Any parliament meeting after dissolution was (except temporarily,

after the kings death) the product of new elections and a fortiori represented a new

session.

391 BLACKSTONES COMMENTARIES *179-80. See also HATSELL, supra note 1, at

200 (The session is never understood to be at an end, until a prorogation).

401 BLACKSTONES COMMENTARIES *180 (And, if at the time of an actual

rebellion, or imminent danger of invasion, the parliament shall be separated byadjournment or prorogation, the king is empowered to call them together by

proclamation, with fourteen days notice of the time appointed for their

reassembling.).

41HATSELL, supra note 1, at 214 (noting that when Parliament met on the day

to which it was prorogued, the cause of the summons had to be declared, and the

King had to open the new session).

421 BLACKSTONES COMMENTARIES *180-82:

[Dissolution] may be effected three ways: 1. By the king's will,

expressed either in person or by representation. . . . by the demise of

the crown. . . .by length of time . . . So that, as our constitution now

stands, the parliament must expire, or die a natural death, at the end

of every seventh year ; if not sooner dissolved by the royal prerogative.

See also 3 CHAMBERS, supra note 1 (entry for Parliament, dissolution of).

43HATSELL, supra note 1, at 218 (stating that a prorogued Parliament can be

dissolved).


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Although prorogation or dissolution terminated a session, mere adjournment

did not. Prorogation killed all pending measures; adjournment did not. As stated by

Blackstone:

AN adjournment is no more than a continuance of the session from oneday to another, as the word itself signifies: and this is done by the

authority of each house separately every day; and sometimes for a

fortnight or a month together, as at Christmas or Easter, or upon other

particular occasions. . . . It hath also been usual, when his majesty

hath signified his pleasure that both or either of the houses should

adjourn themselves to a certain day, to obey the king's pleasure so

signified, and to adjourn accordingly.44

Otherwise, besides theindecorum of a refusal, a prorogation would assuredly follow; which

would often be very inconvenient to both public and private business.

For prorogation puts an end to the session; and then such bills, as are

only begun and not perfected, must be resumed de novo (if at all) in a

subsequent session: whereas, after an adjournment, all things continue

in the same state as at the time of the adjournment made, and may be

proceeded on without any fresh commencement.45

In the colonies, the royal or proprietary governor generally enjoyed the regal

powers of initiating a session of the lower (popular) house of the assembly46 and of

ending it by prorogation47 or dissolution.48 The governors act of proroguing

44Cf. HATSELL, supra note 1, at 209 (stating that the House of Commons could

refuse the Kings request that it adjourn, but never had). See also id. at 211.

451 BLACKSTONES COMMENTARIES *179; see also 3 CHAMBERS, supra note 1

(entry for Parliament, adjournment of); HATSELL, supra note 1, at 207 (statingthat by prorogation, all matters depending before the House are discontinued, but

with an adjournment without a sessionmeaning adjournment without

terminating the sessionmatters continue).

46Thus, in Virginia the House of Burgesses was called by the governor.

Pargellis I, supra note 1, at 76.

47See MASS. COLONIAL RESOLVES, supra note 1, at 84-84 (setting forth an


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sometimes was called granting (or giving) a recess.49 As in Britain, the end of the

assemblys term of office necessarily terminated any on-going session.50 When the

governor wanted a break in the proceedings without an end of the session, he asked

the legislators to adjourn themselves.51

To be sure, American practice did not always follow parliamentary rules. In

the Virginia House of Burgesses, for example, a session could not begin until

members had taken oaths required of colonial legislators by parliamentary

example of prorogation of the Massachusetts colonial house of representatives).

48Pargellis II, supra note 1, at 155 (stating, The powers of the governor as to

the calling and duration of assemblies need only a brief word, for no discussion ever

arose in Virginia as to the exact limitation of such powers. The burgesses alwaysaccepted his right to call them together, to prorogue and dissolve them).

491 VA. COL. COUNCIL J., supra note 1, at 229 (April 30-May 1, 1696)

(reporting that the governor had sought the advice of the executive council, which

was of Opinion that a Recess be Granted, whereupon the governor prorogued the

legislature until a date certain); cf. 6 N.C. RECORDS, supra note 1, at 1311-12,

which reproduces the following from a message from royal governor Arthur Dobbs:

The Votes and Resolutions of the Assembly have never been Produced

or shewn to me, as they ought to have been; I can neither pass the Bills

nor Prorogue the Assembly until I have perused them. I therefore

Expect that you will send the original Votes and Resolutions inManuscript for my Perusal, in order to my Passing the Bills and giving

a Recess to the General Assembly.

50Leonard, supra note 1, at 220.

51See, e.g., 3 VA.COL.COUNCIL J., supra note 1, at 1336 (Dec. 21, 1764):

The Governor was then pleased to signify to the Council and House of

Burgesses that upon considering the season of the year and the long

time they had sat he judged a recess would be agreeable and that

unwilling to impede the Business of the Session by a prorogation he

thought it expedient to direct both Houses to adjourn themselves to thefirst ofMay next. After which the Burgesses withdrew.

See also Pargellis II, supra note 1, at 155 (stating that the Burgesses always

obeyed [the governors] order to adjourn, though, except for a single case in 1693,

the adjournment proper was an act of the house.); MD.1773PROCEEDINGS, supra

note 1, at 27-28 (setting forth an example of prorogation ending a session in

Maryland).


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statute.52 In Pennsylvania, the assembly won the power to determine the length of

its own session by ending it with an adjournment sine die.53 As noted earlier,

however, parliamentary practice generally prevailed in the colonies.54

The British Parliament controlled by statute the length of its term of office,so the royal power to prorogue and dissolve was a valuable check on its power.55 In

America, however, the state constitutions adopted after Independence all imposed

short, fixed terms on lawmakers. This rendered the executives prorogation and

dissolution authority less necessary. Accordingly, the new state constitutions

granted only limited, if any, prorogation or dissolution powers. Illustrative is the

Massachusetts Constitution:

The governor, with advice of council, shall have full power andauthority, during the session of the general court, to adjourn or

prorogue the same at any time the two houses shall desire; and to

dissolve the same on the day next preceding the last Wednesday in

May; and, in the recess of the said court, to prorogue the same from

time to time, not exceeding ninety days in any one recess. . . 56

52Pargellis I, supra note 1, at 75.

53Leonard, supra note 1, at 217-19. When Pennsylvania became a state, asession could end with an adjournment to the scheduled time of the next session.

See, e.g., 1784-85 PA.MINUTES, supra note 1, at 313 (adjourning from Apr. 8, 1785 to

the next session on Aug. 23); 1789 PA.MINUTES, supra note 1, at 202 (adjourning

from March 28, 1789 to the next session on the third Tuesday in August).

54Supra note ___ and accompanying text.

551 BLACKSTONES COMMENTARIES *180 (stating, If nothing had a right to

prorogue or dissolve a parliament but itself, it might happen to become perpetual.

And this would be extremely dangerous, if at any time it should attempt to encroach

upon the executive power).

56MASS.CONST. (1780), ch. II, 1, art. V. On the other hand, U.S. Const. art.

II, 3 grants the President an even fainter shadow:

he may, on extraordinary Occasions, convene both Houses, or either of

them, and in Case of Disagreement between them, with Respect to the

Time of Adjournment, he may adjourn them to such Time as he shall

think proper. . .


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Mostly unfettered by executive powers to prorogue or dissolve, American

legislative sessions ended when the legislatures term of office expired or when it

adjourned itself.57 As in Britain, there might be more than one session during a

particular term of office,58

and as in prior practice, adjournment from day to day oradjournment for relatively short periods did not end the session. However, an

adjournment ending a session did not have to specify that it was sine die59 (as the

New Vista court inaccurately assumed),60 and the adjournment could provide for re-

assembly at the time set for the opening of a new session.61 Sometimes a session

57N.Y.J.ASSEM., supra note 1, at118 (reporting that the legislature adjourned

without day, ending the session). See also 26 J. CONT. CONG. 221 (Apr. 14, 1784)

(reporting a resolution of the Rhode Island legislature instructing Rhode Islandscongressional delegates to use their influence to obtain a recess of Congress. . .

and that Congress adjourn and convene at Rhode Island in the course of the next

year). See also 10 R.I.RECORDS, supra note 1, at 16 (setting forth the resolution).

58Failure to understand this has led some to assume that a reconvening

within the same term of office was part of the same session. See, e.g., Petition for a

Writ of Certiorari, National Labor Relations Board v. Noel Canning, at 14

(assuming that congressional and state legislative adjournments to a time before

the end of a legislative term necessarily implied continuation of the same session).

59 E.g., 19 CONT. CONG. 223 (stating merely that the Continental Congress

was adjourned, when it ended its final session because it was being replaced thefollowing day by the Confederation Congress).

60New Vista, supra, ___ F.3d at ___. See also Petition, supra note ___, at 14

(inaccurately assuming that the June session was a continuation of the March

session because the adjournment of the March session was to a later day rather

than sine die).

61 See, e.g., 16 N.C. RECORDS, supra note 1, at 177 (reproducing minutes of

session of the North Carolina House of Commons stating, The business of the

Session being ended . . . the House Adjourned till the first Monday in November

next, then to meet at Hillsborough); 17 id. at 978 (similar recital); 1784-85 PA.

MINUTES, supra note 1, at 313 (adjourning from April 8, 1785 to the next session

beginning August 23, 1785); 1789 PA. MINUTES, supra note 1, at 202 (adjourning

from March 28, 1789 to the next session on the third Tuesday in August); 1

JOURNALS AND PROCEEDINGS OF THE GENERALASSEMBLY OF THE STATE OFVERMONT,

reproduced in 3 STATE PAPERS OFVERMONT (1924) (listing multiple sessions each

year); see also id. at 235 (providing for the end of March session by adjournment

until a specified date), 232-33 (providing for deferral of April session business until


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ended without recording a formal vote of adjournment at all.62

IV. THE MEANING OF THE RECESS

In common use, the term recess (without the) meant only A retreat, awithdrawment; a place of retirement, a secret abode; remission, a suspension of any

procedure. . . .63 In legislative practice, recess (without the) could refer to any

time when legislature not physically sitting,64 including intra-session breaks65 and

apparently even a noon recess.66 It seems, however, that in government practice the

phrase the Recess always referred to the gap between sessions.

Numerous references in eighteenth century records support this conclusion. I

shall present these references in two classes.

next session) & 243-24 (recording commencement of June session).

62E.g., 12 N.C.RECORDS, supra note 1, at 113 (ending session of the state

senate without recording vote of formal adjournment); id. at 814 (same).

63ASH, supra note 1 (defining recess). See also ALLEN, supra note 1

(retirement. Departure); BAILEY, supra note 1 (a retreat); COCKER, supra note 1

(a retiring or withdrawing, a place of Retreat); JOHNSON, supra note 1 (reciting

definitions similar to those in ASH); SHERIDAN, supra note 1 (setting forth similar

definitions); DYCHE & PARDON, supra note 1 (a retreating, going back, orwithdrawing; also a place of retirement, case, or hiding, followed by a definition

specific to astronomy); DONALDSON, supra note 1 (retirement; retreat; withdrawing;

secession. Departure. Place of retirement; place of secrecy; private abode. Secrecy of

abode. Secret part.); KENDRICK, supra note 1 (Retirement; retreat; withdrawing;

secession.Departure.Place of secrecy; private abode . . . Remission or suspension

of any procedure.Removal to distance. . . ); PERRY, supra note 1 (secret place,

departure, retirement).

64See, e.g., 1780 MASS.RESOLVES, supra note 1, at 136.

651 GA. RECORDS, supra note 1, at 322 (stating This, the first legislature

under the [state] constitution, was in session almost continuously, with anoccasional recess, 'till the middle of September). See also 1784-85 MASS.RESOLVES,

supra note 1, at 818-19 (referring to a short recess); 3 VA.COL.COUNCIL J., supra

note 1, at 1336 (Dec. 21, 1764) (reproducing the governors message that he

suggested a recess by adjournment rather than prorogation since he was

unwilling to impede the Business of the Session).

66If this is the meaning ofLeonard, supra note 1, at 222.


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The first class of references are those that refer to the recess specifically as

the period between legislative sessionsthat is, where there really is no other way

to read the record. The second class consists of uses of the recess in ways that

imply longer (inter-session) periods rather than short breaks. Among these arelegislative grants to the executive or to particular committees for exercise during

the recess under circumstances where doing so would make no sense unless the

recess referred to was a long, inter-session one.

A. References to the period between sessions as the Recess

The Founding-Era record contains various references to the Recess as

necessarily meaning the period between sessions, and in sharp contradistinction tothe time the legislature was in session.67 Thus, William Blackstone wrote that

During the session of parliament the trial of an indicted peer is not properly in the

court of the lord high steward. . .But in the court of the lord high steward, which is

held in the recess of parliament, he is the sole judge in matters of law. . . 68

Blackstone also wrote of a grievance committee established, lest there should be a

defect of justice for want of a supreme court of appeal, during the intermission or

recess of parliament; for the statute farther directs, that if the difficulty be so great,

that it may not well be determined with the assent of parliament, it shall be

brought by the said prelate, earls, and barons unto the next parliament, who shall

finally determine the same.69 The recess, in other words, was the time between

parliamentsor, more precisely, parliamentary sessions. It did not denote times

within a particular session. Thus, another English writer observed that The last

recess of Parliament was a period filled with unprecedented troubles: and the

67In addition to the use of the term the Recess to refer to the inter-session

intermission, the governor sometimes referred to it as your [legislators] recess.

See, e.g., MD.1773PROCEEDINGS, supra note 1, at 2 (address of the governor). But

the technical term was the recess.

684 BLACKSTONES COMMENTARIES *260 (italics added).

693 BLACKSTONES COMMENTARIES *57


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Session opened in the midst of tumults.70

In 1765, American lawmakers were asked to send delegates to what was later

called the Stamp Act Congress.71 Lawmakers in some colonies were frustrated,

however, because their governors had prorogued their assemblies. On September 6,1765, Alexander Wyllys of Connecticut told a correspondent, The General

Assembly of this Province Stands Prorogued to the Twenty second day of October. . .

it being in the recess of the General Assembly. . . .72 Thus, the prorogation,

necessarily the end of the session,73 triggered the recess. In Delaware, an informal

caucus of lawmakers appointed their states delegates because they did not have it

in our Power to Convene as a House although they were sensible of the

impropriety of Assuming the Functions of Assembly Men, during the Recess of OurHouse. . . .74 In other words, during the recess they were out of session.

Early American governors rendering reports to their legislatures at the

opening of a formal session also referred to the period since the last session as the

Recess.75 So also did the 1784 New Hampshire Constitution, which provided that

70Quoted in JOHN WESLEY,FREE THOUGHTS ON THE PRESENT STATE OF PUBLIC

AFFAIRS 26 (1770).

71Natelson, Conventions, supra note 1.

72Quoted in WESLAGER, supra note 1, at 215-16.

73Supra notes 37-40 and accompanying text.

74WESLAGER, supra note 1, at192.

75Infra note ___ and accompanying text.

See also 21 N.H. RECORDS, supra note 1, at 49 (Jun. 13, 1787) (referring to

the state presidents message and correspondence received in the recess); 28 J.

CONT.CONG. 104 (Feb. 25, 1785) (reproducing a proposed revision of the duties of

the congressional secretary, including the phrase, He shall attend Congress during

their session, and in their recess the Committee of the States . . . .); 34 id. 21-22

(Feb. 1, 1788), 106 (Mar. 24, 1788) & 222 (Jun. 13, 1788) (all reproducing

correspondence referring to the period after the end of one session and before the

Continental Congress could obtain a quorum to begin its next session as the recess

or the present recess). But see 32 id. at 302 (Jul. 4, 1787) (reproducing a letter

from Secretary Henry Knox referring to a period during which Congress was unable

to assemble a quorum as the present recess of Congresssurely a euphemism,


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The President, with the advice of Council shall have full power and

authority in the recess of the General-Court [legislature], to prorogue

the same from time to time, not exceeding ninety days in any one

recess of said Court; and during the session of said Court, to adjourn or

prorogue it to any time the two houses may desire, and to call it

together sooner than the time to which it may be adjourned, or

prorogued . . . .76

The legislative journals contain a massive number of references by which the

recess is distinguished from the legislatures sessions. For example, the New

York legislative records report the phrase the Recess being employed exclusively

to refer to periods when the legislature was not in session. 77 Similarly, the 1778

journal of the Virginia House of Delegates, tells us that the house

Ordered, That the delegates for the several counties consult with their

constituents, during the recess of Assembly, on the justice and

expediency of passing [a designated] bill . . . and that they procure

from them instructions, whether or not the said bill shall be passed,

and lay the same before the House of Delegates at their next session.78

A resolution of the Massachusetts legislature adopted September 9, 1779

referred to the Recess of the state constitutional convention as the time after the

conventions late session.79 On March 24, 1788, the same legislature authorized a

under the circumstances).

76 N.H.CONST. (1784) (article entitled The Executive Power: President).77See, e.g., N.Y. J. GEN.ASSEM. (Jan. 6, 1774), supra note 1, at 84 (Mar. 7,

1774) (reciting an order That the said Bill be postponed till the next Session; and

that the Clerk of this House do in the Recess thereof . . . furnish the Parties

Interested [certain documents]).

78VA.J.DELEGATES, supra note 1, at 123 (Dec. 18, 1778) (italics added).

7921 MASS. COLONIAL RESOLVES, supra note 1, at 125 (reproducing the

resolutions for adjourning the sessions of the superior Court, which referred to said

Convention at their late Session . . . [and a] Committee is enjoined to sit upon that

Business on Monday next, and to compleat [sic] their Work during the Recess of the

said Convention).


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payment to a committee appointed in the last Session . . . to sit in the recess.80 A

Massachusetts enactment providing for a vacancy appointment during the Recess

explicitly referred to that period as occurring after the session.81 A Rhode Island

legislative resolution also referred to the time following the session as the recess.82

The legislative journals of New Hampshire are replete with legislative

resolutions authorizing work to be done during the recess with directions that the

result of the work should be produced before this house at the next session. 83

Similarly, the period immediately before a new session was referred to as the last

recess.84 The New Hampshire records also refer to a petition being be put over to

801786-87 MASS. RESOLVES, supra note 1, at 855 (Resolved, that there be

allowed and paid out of the publick Treasury of this Commonwealth, to the

Committee of Finance, appointed in the last Session of the General Court [the

Massachusetts term for the legislature], to sit in the recess).

811782-83 MASS. RESOLVES, supra note 1, at 523 (in case a vacancy shall

happen . . . in the recess of the General Court, or at so late a period in any session of

the same Court, that the vacancy occasioned in any manner as aforesaid shall not

be supplied in the same session thereof ). See also id. at 128 and 1786-87 MASS.

RESOLVES, supra note 1, at 186 (both with similar wording).

8210 R.I.RECORDS, supra note 1, at 122:

It is voted and resolved, that the secretary, within ten days after therising of every session of this Assembly, make out and transmit, to the

persons concerned therein, copies of all votes appointing committees to

act in the recess of the General Assembly, or directing anything to be

done by any officer of this state or others; to the end that the same may

be carried into effect, agreeably to the true intention and meaning

thereof.

Italics added.83E.g., 8 N.H.RECORDS, supra note 1, at 469 (Jan. 18, 1777) (providing for

committee to draw up fee schedule for officers during the recess, with production for

the next session); 20 id. at 141 (Nov. 3, 1784) (referring to committee reportrecommending inquiry in the recess with a report at the next session); id. at 181

(Feb. 24, 1785) (same), 200 (Feb. 17, 1785) (providing for revision of fees in the

recess with a report at the next session). Similar references appear at id. at 220,

506, 662 & 664 and 21 id. at 187, 222, 504, 562, 569-70, 604, 619, 721 & 730.

84E.g., 8 N.H.RECORDS, supra note 1, at 768 (Feb. 13, 1778) (mentioning the

last recess as the period immediately before the session, which had just obtained a


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the next Session of the General Court [legislature] and if the parties should not

settle in the recess that [the petitioner] have leave to bring in a Bill at said next

Session.85 From references like these, it is clear that the recess represented the

period between sessions and was clearly distinguished from them.86

B. Usages Implying that the Recess Meant Only the Inter-Session Recess

Part III.A provided instances in which the term the recess was clearly used

as an alternative to, and synonymously with, the term between sessions. This Part

III. B examines other usages that, while less definitive, strongly imply that the

recess was generally understood to mean the break between legislative sessions.

1. Legislative Grants of Special Powers During the Recess

Legislatures generally were the most potent branches of colonial and state

government during the Founding Era. They exercised not merely legislative powers,

but also those that we would consider executive.87 Colonial assemblies, for example,

often were involved in executive appointments and the formulation of executive

policy.88

Yet legislatures were part time, and often had to delegate authority to other

actors for the duration of their recesses. The Founding-Era legislative records are

full of these delegations. Most of them make sense only if one assumes that the

recess will not be a short-term adjournment, but an intermission lasting a

considerable amount of timepresumably until the next session.

quorum the day before).

85 21 N.H.RECORDS, supra note 1, at 503-04 (Feb. 5, 1789).

86 See also id. at 710 (Jan. 19, 1790) (reproducing report stating Your

Committee have also in the recess of the [legislature] and during the Session

carefully examined the vouchers) (italics added).

87Cf. Greene, supra note 1, at 468 (colonial assemblies assumed many powers

formerly thought of as executive).

88Greene, supra note 1, at 468-69.


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Sometimes the delegatee was a legislative committee. I already have referred

to Parliaments creation of a grievance committee to act during the . . . recess of

parliament, with possible further proceedings in a later session.89 On September

22, 1777, the New York legislature voted to constitute a Council of State to assist

the Governor, for the Time being, to administer the Government during the Recess

of the Legislature.90 In November, 1778, the New York assembly appointed a

committee to examine the public accounts during the Recess of the Legislature.91

Most often, however, the delegatee was the governor or president of the state,

with or without his executive council. The Recess Appointments Clause is itself a

specimen of this practice, as is the Constitutions grant to state executives to

appoint temporary U.S. Senators if Vacancies happen by Resignation or otherwise

during the Recess of the Legislature of any State.92

Illustrative is the Pennsylvania legislatures resolution of December 5, 1778:

That his excellency the president and the supreme executive council be

authorized, during the recess of the house, to employ proper persons to

make sale of the state brig Convention, and such of the gallies [sic],

89Supra note ___ and accompanying text.

90N.Y.J.ASSEM. (Sep. 22, 1777), supra note 1, at 17. See also N.Y.J.ASSEM.

(Oct. 3, 1780), supra note 1, at 46, 50 & 56.

91N.Y. J.ASSEM. (Nov. 3, 1778), supra note 1, at 37-38. See also id. at 98

(March 10, 1779) (passage of similar bill). Cf. 1780 MASS.RESOLVES, supra note 1, at

697 (appointing a committee to examine accounts during the recess and make a

report at the next setting).

92U.S. CONST. art. I, 3, cl. 2 (if Vacancies happen by Resignation, or

otherwise, during the Recess of the Legislature of any State, the Executive thereof

may make temporary Appointments until the next Meeting of the Legislature,

which shall then fill such Vacancies).Another provision is superficially similar: the Guarantee Clause, by which

The United States . . . protect [state] against Invasion; and on Application of the

Legislature, or of the Executive (when the Legislature cannot be convened) against

domestic Violence. U.S.CONST. art. IV, 4 (italics added). The Guarantee Clause,

however, is tied to the physical inability of the legislature to meet, rather than to

the formal recess.


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armed boats, with their apparel, guns, tackle, &c. as the said council

shall think proper; and if it shall appear to the said president and

supreme executive council, in the recess of the house, that it will

promote the good of the state, to provide a ship of war, or the

protection of trade, they shall be, and are hereby empowered, to agree

with suitable persons to purchase or build and fit out the same. . . . 93

Two years later, the Pennsylvania legislature empowered the Executive to

proclaim and establish martial law in case of necessity during the recess of the

Assembly, for limited periods.94

Similarly, the Delaware legislature empowered the state president from

time to time during the recess of the General Assembly, to draw his orders on the

State Treasurer . . . for such sum or sums of money as may be necessary to enable

him to procure and furnish officers with the supplies and clothing for the ensuing

year. . . .95 The Rhode Island colonial assembly authorized the governor to pursue

measures to resolve the Gaspee affair during the recess of the General

Assembly.96 Resolutions from other states authorized the executive during the

legislative recess to (1) grant permissions,97 (2) impose an embargo,98 (3)

discontinue an embargo,99 (4) hear complaints,100 (5) call out the militia,101 (6) issue

93PA.J., supra note 1, at 253 (Dec. 5, 1778).

94William H. Houston to Governor Livingston, June 4, 1780, reprinted in

SELECTIONS FROM THE CORRESPONDENCE OF THE EXECUTIVE OF NEW JERSEY, 1776-

1786, 221, 223 (1848).

95DELAWARE COUNCIL MINUTES, supra note 1, at 537.

967 RIRECORDS, supra note 1, at 51 & 105.

971 GA. RECORDS, supra note 1, at 223 (reproducing an order that no

recruiting officers from South Carolina shall enlist any men within this State,without express permission first obtained from the Convention, or, in its recess,

from the President and Council).

981 CONN.RECORDS, supra note 1, at 10.

992 CONN. RECORDS, supra note 1, at 17 (producing a resolution that the

Governor by and with the advice of his Council and the Council of Safety may

discontinue the said embargo in whole or in part if they shall judge the public good


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other military orders,102 (7) withdraw funds from the treasury,103 and (8) fill

vacancies.104 The South Carolina legislature granted such broad recess authority to

its governor, John Rutledge (later a leading Constitutional Convention delegate),

that its action provoked claims that the governor had become dictator John.105

This practice was so common that in some states it became customary for a

legislature nearing the end of its session to pass an omnibus bill delegating a list of

powers to the executive to be exercised in the recess or until the next Setting

[session].106

requires it at any time during the recess of the General Assembly). See also 21

MASS. COLONIAL RESOLVES, supra note 1, at 196-97 (empowering the executive

council to lift an embargo during recess).

1002 CONN.RECORDS, supra note 1, at 396 (stating that such complaints are

to be made to the General Assembly when sitting, and in their recess the Governor

and his said Council); 21 MASS. COLONIAL RESOLVES, supra note 1, at 311-12

(resolution appointing a recess committee to consider a dispute among two towns).

1011780 MASS.RESOLVES, supra note 1, at 667 (reproducing authorization for

governor to call out militia).

10212 N.C. RECORDS, supra note 1, at 99-100 (granting governor military

powers during the recess).

1031780 MASS. RESOLVES, supra note 1, at 368 (authorizing a grant of ten

thousand pounds during the recess of the General Court [i.e., the legislature] to bedrawn out of the treasury by the governor for contingent services).

104Infra Part V.A.

10517 J. CONT. CONG. 636 (July 17, 1780) (paraphrasing South Carolinas

ordinance for the better security and defence of this State during the recess of the

General Assembly); 21 J. CONT. CONG. 1105 (Nov. 5, 1781) (containing similar

paraphrase). For an account of the dictator charge, see John W. Barnwell, Jr.,

Rutledge, The Dictator, J.SO.HISTORY215 (1941).

106See, e.g. 19 MASS. COLONIAL RESOLVES, supra note 1, at 720-21 (Resolves

Vesting the Council with Certain Powers); id. at 812 (same title). The latter reads inpart:

Whereas it may be of Public Utility that in the recess of the

General Court [legislature] Certain powers should be vested in the

Council other than those with which they are ordinarily Cloathed

therefore;

Resolved that the Honble Council during the next Recess of the


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The Continental Congress repeatedly encouraged states to make decisions

through executive action in the recess of the state legislature by adopting

resolutions calling on state legislatures or, in their recess the executive, to

undertake certain actions.107 The Continental Congress itself delegated authority

General Court be and hereby are fully authorized and impowered to

nominate and appoint as Occasion may require such Commissioned

Officers in any of the Land Forces in the Service and Pay of this State

and also in the militia as to them shall appear Necessary and also to

put said forces under the Command of such Officers as they shall judge

proper, & the Commission or Authority of such Officers shall continue

till the further order of the General Court, And it is also

Resolved, That the said Council be and hereby are also

impowered and Authorized to treat with any Indians that may arrive

in this State and make such provision for them as they may judge

proper. And it is also

Resolved That the said Council shall have full power and

Authority to examine allow & pass upon the pay rolls of the Sea Coast

men and their Commissaries accounts, any Act or Resolve to the

Contrary notwithstanding and grant Warrants upon the Treasury for

the payment of the same. Also Resolved that the Honble Council shall

be and hereby are Impowered to call the General Court together at any

time sooner than the time to which said Court shall stand adjourned, if

they judge it necessary for the publick safety

The aforegoing powers to Continue in the Council until the next

Setting of the General Court and no longer.

See also 1780 MASS. RESOLVES, supra note 1, at 372 (authorizing special

powers during the recess of the general court) & 21 MASS. COLONIAL RESOLVES,

supra note 1, at 229 (same).

107See, e.g., 7 J.CONT.CONG. 124-25 (Feb. 17, 1777):

That, for this purpose, it be recommended to the legislatures, or, in

their recess, to the executive powers of the States of New York, New

Jersey, Pensylvania [sic], Delaware, Maryland, and Virginia, toappoint commissioners to meet at York town, in Pensylvania, on the 3d

Monday in March next, to consider of, and form a system of regulation

adapted to those States, to be laid before the respective legislatures of

each State, for their approbation:

That, for the like purpose, it be recommended to the legislatures, or

executive powers in the recess of the legislatures of the States of North


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to named officials or committees during the Recess. Hence, that body

Resolved, That the pay master general of the army at Cambridge, be

empowered to draw his bills upon the president of the Congress, or, in

their recess, upon the committee of Congress for that purpose

appointed, for any sums of money which may be deposited in his

hands, not exceeding, in any one month, the monthly expences of the

army. . . .108

The Articles of Confederation formalized recess delegation by establishing a

thirteen-member Committee of the States to sit in the recess of Congress.109

Carolina, South Carolina, and Georgia, to appoint commissioners to

meet at Charlestown, in South Carolina, on the first Monday in May

next. . . .

See also 7 J.CONT.CONG. 172 (Mar. 12, 1777):

Resolved, That it be recommended to the legislatures, or, in their

recess, to the executive power of each of the United States, to cause

assessments of blankets to be made. . . and that all blankets to be

obtained in this manner, be valued at a just and reasonable price, and

paid for by the states respectively, to be repaid by the United States:

and that the legislature, or, in their recess, the executive power, do

cause money to be put into the hands of a proper officer in everycounty, district, or township, in order that such blankets may be paid

for, without delay or trouble, to the housekeepers on whom the

assessments shall be made.

See also 7 J. CONT. CONG. 264 (Apr. 14, 1777) (appointing a committee to

confer with Pennsylvania officials concerning the mode of authority which they

shall conceive most eligible to be exercised, during the recess of the [state] house of

assembly and the council, in order that the same, if approved of by Congress, may

be immediately adopted.).

1084 J.CONT.CONG. 60 (Jan. 5, 1776).

109ARTS.CONFED. art. IX.

In its petition for certiorari in Noel Canning, supra, at 14, the NLRB-

petitioner asserted that the committee of the states, designed to convene in the

recess, met during an intra-session recess in 1784. This is inaccurate. The

intermission actually lasted from June 3, 1784 to the first Monday in November

(that is, November 1, 1784), the date designated by the Articles of Confederation for

the beginning of the next term of office. Thus, it was necessarily an inter-session


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One special sort of recess delegation was the legislative grant of recess war

powers to committees of safety (also called councils of safety and councils of war). In

1775, the Continental Congress recommended that each Colony to appoint a

committee of safety, to superintend and direct all matters necessary for the security

and defence of their respective colonies, in the recess of their assemblies and

conventions.110 Congress also recommended that all officers above the Rank of a

captain, be appointed by their respective provincial assemblies or conventions or in

their recess, by the committees of safety appointed by [said] assemblies or

conventions.111 Throughout the Revolution, the Continental Congress continued to

refer to committees of safety as the proper agents to act during the recess of a state

legislature or convention.112

recess. 27 J.CONT.CONG. at 556 (Jun. 3, 1784) & id. at 641 (Nov. 1 1784).

The basis for the petitioners assertion was that the adjournment resolution

contemplated reconvening at Trenton on October 30 rather than on November 1

(Petition, supra, citing26 J.CONST.CONG. 295-92 [Apr. 26, 1784]). This is relevant

only if one assumes that an October 30 gathering would have been part of the

previous session rather than a new session. However, there is little basis for that

assumption.

If the date was not a mistake and Congress planned a one-day end-of-termmeeting (October 31st was a Sunday), the long gap between adjournment and re-

assembly suggests that Congress intended a new session. This would have been

consistent with the Articles, which specified an annual term for Congress and a

beginning date for the first session, but did not constrain congressional power to

add sessions within a term. ARTS. CONFED. art. V (delegates shall be annually

appointed in such manner as the legislatures of each State shall direct, to meet in

Congress on the first Monday in November, in every year).

The October 30 date may have been simply an error: It was not the custom to

begin sittings on a Saturday, and neither the journal nor the available

correspondence reveals any reason for selecting October 30th rather than November

1and no one showed up until November 1. Perhaps selection of the 30th resulted

from a miscalculation designed to effectuate Congresss plans to divide time equally

between Annapolis and Trenton.

1102 J.CONT.CONG. 189 (Jul. 18, 1775).

1112 J.CONT.CONG. 188 (Jul. 18, 1775).

112See, e.g., 4 J. CONT. CONG. 34 (Jan. 5, 1776) (Resolved, That it be


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Most, if not all, states responded by appointing committees of safety to act

during the recess of their legislatures.113 In states such as Connecticut, the

delegation of authority for the recess was made to the governor acting with the

committee of safety rather than to the committee alone.114 In other states, the

recommended to the Convention, or in their recess, to the committee of safety, of

New York, to carry into execution the above resolution); 5 J.CONT.CONG. 488 (Jun.

27, 1776) (That it be recommended to the convention, or, in their recess, to the

committee or council of safety of Maryland, immediately to appoint proper officers

for, and direct the inlistment of, the four companies to be raised in that colony).

113See, e.g., 1 CONN.RECORDS, supra note 1, at 588 :

Therefore voted and resolved, That his Honor the Governor, his Honor

the Deputy Governor, [and certain named persons] be and they arehereby appointed a Council of War; that they or any five of them are

fully empowered to do, act and transact, all and every thing and

matter for the well being and security of this State, and the United

States in general; that they make and ordain all such rules, orders and

regulations for the well governing, ordering, disciplining, cloathing and

supplying the army now raised. . . ; and that all such rules, orders and

regulations by them made in the recess of the General Assembly shall

be of as full force and authority to all intents and purposes though

made and passed by this General Assembly.

See also DELAWARE COUNCIL MINUTES, supra note 1, at 22 (reproducing a messagefrom the council addressing a house of delegates resolution for the appointment of

a Council of Safety for this State, to act during the recess of the Legislature);

DELAWARE COUNCIL MINUTES, supra note 1, at 24 (voting for persons to compose a

Council of Safety during the next recess of the General Assembly); 8 N.H.RECORDS,

supra note 1, at 17 (voting to create a committee of safety To transact the Business

of this Colony in the recess of the General Assembly); 19 MASS. COLONIAL

RESOLVES, supra note 1, at 586 (reproducing delegation of broad powers to

committee of safety during the recess of the General Court); 7 R.I.RECORDS, supra

note 1, at 322 (appointing committee of safety).

114E.g., 1 CONN. RECORDS, supra note 1, at 93 (referring to receipt of

certification of election of military officers and commissioning to the General

Assembly or in the recess of said Assembly to the Governor and Council of Safety);

1 CONN.RECORDS, supra note 1, at 118 (stating That in the recess of the General

Assembly his Honor the Governor with the Council of Safety may and they are

authorized to make other or further regulations or provisions as from the state and

circumstances of the case shall appear to them expedient and necessary for the

safety and defence of any of the coasts or places aforesaid.); 1 CONN. RECORDS,


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legislature granted recess authority to the committee alone, sometimes including

the governor as one of its members. The authority thus granted was often vast. The

Rhode Island committee of safety initially received power during the recess of the

General Assembly, to fill up all vacancies that shall happen amongst the officers

that shall be appointed by the General Assembly for the said army.115 Later,

however, the committeenow renamed the council of warwas entrusted with

authority during the recess of the General Assembly to

make, ordain, constitute and appoint all such orders, decrees,

regulations and commands of an executive nature, whether civil or

military, as require an immediate attention, and which do not interfere

with, or counteract any known and established laws of this state, in as

full, ample and effectual manner, as this General Assembly could or

ought, were they actually sitting.116

Obviously, few, if any, of these delegations contemplated short-term, intra-

session adjournments. They assumed extended periods of time during which the

legislature would not be availablethat is, inter-session recesses.

supra note 1, at 374 (That the raising the regiment ordered by this Assembly to beraised for the defence of this or the neighbouring States be postponed for the

present, and that his Excellency the Governor with the advice of the Council of

Safety have power to give all necessary orders for raising the same if it shall be

necessary in the recess of the General Assembly.).

See also 2 CONN.RECORDS, supra note 1, at 464:

That in the recess of the Assembly his Excellency the Governor by and

with the advice of the Council of Safety are hereby authorized and

impowered to hear the application of any person or persons of the

aforesaid character, and to grant permission to such person or persons

as they may judge proper, to go to Long Island and to bring their

families and effects under such regulations and restrictions as they

may judge proper. . .

1157 R.I.RECORDS, supra note 1, at 322.

1169 R.I. RECORDS, supra note 1, at 73; see also id. at 472-73 (reproducing

powers of council).


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2. Other Resolutions Implying That the Recess Referred Only to

Inter-session Breaks

Several kinds of documents other than recess delegations seem based on the

assumption that the recess refers only to gaps between sessions.

For example, colonial and state governors and state presidents typically

addressed messages to their legislatures at or near the opening of each new session.

Perhaps the most representative are those addressed by Governor George Clinton to

the New York State General Assembly. Such messages invariably referred to the

period since the previous session as the recess.117 Less formal messagesfrom the

governor or the speaker of the housedisclose the same usage.118

Additional specimens appear in resolutions the legislatures passed for the

operation of government during the recess, other than the delegations discussed

117See, e.g., N.Y.J.ASSEM. (Oct. 18, 1784), supra note 1, at 6-7 (reproducing

message from governor at opening of session that referred to the period since the

last session as the recess); N.Y. J.ASSEM. (Jan. 11, 1788), supra note 1, at 7

(same); N.Y.J.ASSEM. (Jan. 13, 1790), supra note 1, at 2 (same).

Cf. 1784-85 MASS. RESOLVES, supra note 1, at 824 (reproducing a message

from the governor stating, in part During the recess of the General Court, therehave happened two vacancies in the revenue department; one by death, and the

other by resignation.). (The source erroneously tags the session as a 1785 session,

id. at 821 and headings of subsequent pages, although the documents clearly

pertain to the February, 1786 session and are dated as such.); 16 N.C. RECORDS,

supra note 1, at 30 (reproducing message from the governor laying before the state

House of Commons letters received in the recess of the General Assembly).

118E.g., DELAWARE COUNCIL MINUTES, supra note 1, at 1157 (referring to an

early-session message from the state president with the words, During your late

recess, the following public letters have been received by me); 7 R.I. RECORDS,

supra note 1, at 333 (reproducing governors letter referring to letters receivedduring the recess); N.Y.J.ASSEM. (Aug. 24, 1779), supra note 1, at 6 (reproducing

announcement from the Speaker of the Assembly that the Governor had delivered

to him sundry Petitions, received during the Recess of the Legislature, relative to

Matters for which the Legislature alone are competent.). Cf. N.Y.J.ASSEM. (Jan.

27, 1780, supra note 1, at 88 (reproducing a message from governor stating, Since

your Recess I have received several Resolutions from the Honorable the Congress).


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earlier.119 These resolutions also assume that the recess will last a substantial

amount of time, or otherwise imply that the period will last from the end of one

session or sitting to the next.120 Insofar as I have found, resolutions of that kind

never seems to be referring to mere intra-session breaks.

Illustrations abound:

* Legislatures very often authorized special pay for committees and other

persons with duties during the recess, which would hardly have been

necessary if the recess were not fairly long.121

* In April, 1784, the congressional delegates from Rhode Island moved that the

Confederation Congress convene in Trenton after the recess of Congress.

The motion reveals that the delegates conceived of the Recess as lasting

from June 3 to October 30that is, an inter-session break.122 (Congress

119Supra Part III.B.1.

120E.g., 21 MASS.COLONIAL RESOLVES, supra note 1, at 122-23 (granting wide

authority to the executive council until the next Sitting of the General Court,

including power to nominate and appoint, as occasion may require, such

Commission Officers in any of the Land Forces, armed Vessels or Vessels of War in

the Service and Pay of this State, and also in the Militia, whose Places by Death or

otherwise, are or may in the Recess of the Court become vacant) (italics added); id.at 363 (similar usage); id. at 488-89 (similar usage).

121E.g., 21 MASS.COLONIAL RESOLVES, supra note 1, at 485 (authorizing pay

for a committee sitting during the present recess); 8 N.H. RECORDS, supra note 1,

at 962 (Dec. 28, 1782) (authorizing pay for the committee of safety in the recess of

the legislature); 20 id. at 111 (Nov. 9, 1754) (authorizing payment for council

members during the recess); PA. GEN.ASSEMBLY, supra note 1, at 201 (Mar. 10,

1785) (special pay for clerk and assistant clerk for work done during the previous

recess); id. at 306 (Apr. 5, 1785) (authorizing pay for work to be done by those

officers during the [next] recess of the House).

12226 J.CONT.CONG. 287-88 (Apr. 26, 1784):

The Delegates for the State of Rhode Island and Providence

Plantations pursuant to their instructions . . . beg leave to renew their

motion . . . Resolved: That the President be, and he hereby is

authorised and directed, to adjourn Congress on the third day of June

next to meet on the thirtieth of October next at Trenton, for the

despatch of public business; and that a committee of the states shall be


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approved the motion.)123

* A letter read in the Confederation Congress to the French ambassador

referred to a letter from France that will probably arrive in the Recess of

Congress124an eventuality that would have been likely only if the Recess

of Congress was a lengthy one.

* The Confederation Congress debated whether its presid